This Blog is for general information purposes only. While we do our best to keep all our posts updated, the Louisiana legislature makes changes to our laws every year. Unfortunately, we sometimes unintentionally fail to make appropriate updates. If you have any specific questions, please contact our firm. We are here to assist you with your legal questions.

This law was enacted during the 2014 legislative session. The statute may be found here.

Re-homing of a child is any one of the following:

(1) A transaction, or any action taken to facilitate such transaction, through electronic means or otherwise by a parent or any individual or entity with custody of a child who intends to avoid or divest himself of permanent parental responsibility by placing the child in the physical custody of a nonrelative, without court approval, unless Subsection B of this Section applies. Actions include but are not limited to transferring, recruiting, harboring, transporting, providing, soliciting, or obtaining a child for such transaction.

(2) The selling, transferring, or arranging for the sale or transfer of a minor child to another person or entity for money or any thing of value or to receive such minor child for such payments or thing of value.

(3) Assisting, aiding, abetting, or conspiring in the commission of any act described in Paragraphs (1) and (2) of this Subsection by any person or entity, regardless of whether money or any thing of value has been promised to or received by the person.

B. Re-homing does not include:

(1) Placement of a child with a relative, stepparent, licensed adoption agency, licensed attorney, or the Department of Children and Family Services.

(2) Placement of a child by a licensed attorney, licensed adoption agency, or the Department of Children and Family Services.

(3) Temporary placement of a child by parents or custodians for designated short-term periods with a specified intent and time period for return of the child, due to a vacation or a school-sponsored function or activity, or the incarceration, military service, medical treatment, or incapacity of a parent.

(4) Placement of a child in another state in accordance with the requirements of the Interstate Compact on the Placement of Children.

(5) Relinquishment of a child pursuant to the safe haven provisions of law.

Penalty

C. Whoever commits the crime of re-homing of a child shall be fined not more than $5,000.00 dollars and shall be imprisoned at hard labor for not more than 5 years. This is a felony.

This is a new law that was created during the 2014 legislative session, essentially this law states that it is unlawful to ask someone for a ride or transportation in exchange for sexual intercourse. This is considered a prostitution related offense.

A. It shall be unlawful for any person to solicit funds or transportation with the intention to solicit the person to engage in indiscriminate sexual intercourse for compensation.

New Statute, Residential Contractor Fraud

During the 2014 legislative session, the Louisiana law makers repealed the statute for Home Improvement Fraud and replaced it with Residential Contractor Fraud.

Residential Contractor Fraud — La. R.S. 14:202.1

Residential contractor fraud is the misappropriation or intentional taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations by a person who has contracted to perform any home improvement or residential construction, or who has subcontracted for the performance of any home improvement or residential construction. A misappropriation or intentional taking may be inferred when a person does any of the following:

(1) Fails to perform any work during a forty-five-day period of time or longer after receiving payment, unless a longer period is specified in the contract.

(2) Uses, or causes an agent or employee to use, any deception, false pretense, or false promise to cause any person to enter into a contract for home improvements or residential construction.

(3) Damages the property of any person with the intent to induce that person to enter into a contract for home improvements or residential construction.

(4) Knowingly makes a material misrepresentation of fact in any application for a permit required by state, municipal, or parochial law.

(5) Knowingly makes a material misrepresentation of fact in any lien placed upon the property at issue.

(6) Fails to possess the required license for home improvements or residential construction required by applicable state, municipal, or parochial statute.

(7) Knowingly employs a subcontractor who does not possess the required license by applicable state, municipal, or parochial statute.

“Home improvement or residential construction” means any alteration, repair, modification, construction, or other improvement to any immovable or movable property primarily designed or used as a residence or to any structure within the residence or upon the land adjacent to the residence. This law can apply to mobile homes an certain trailers.

Penalties

When the misappropriation or intentional taking amounts to a value of less than $500.00 dollars, the offender shall be imprisoned for not more than 6 months, fined not more than one thousand dollars, or both.

When the misappropriation or intentional taking amounts to a value of $500.00 dollars or more, but less than $1500.00 dollars, the offender shall be imprisoned, with or without hard labor, for 0 to 5 years, or may be fined not more than $2,000.00 dollars, or both.

When the misappropriation or intentional taking amounts to a value of $1500.00 dollars or more, the offender shall be imprisoned, with or without hard labor, for 0 to 10 years, or may be fined not more than $3,000.00 dollars, or both.

* In determining the amount of the misappropriation or intentional taking, the court shall include the cost of repairing work fraudulently performed by the contractor and the cost of completing work for which the contractor was paid but did not complete.

* In addition to the penalties provided by the provisions of this Section, a person convicted of residential contractor fraud shall be ordered to make full restitution to the victim and any other person who has suffered a financial loss as a result of the offense. For the purposes of this Subsection, restitution to the victim shall include the cost of repairing work fraudulently performed by the contractor and the cost of completing work for which the contractor was paid but did not complete.

**Please forward widely**

To All People of Conscience:

The Ferguson Legal Defense Committee (FLDC) has issued the following EMERGENCY CALL TO ACTION for all lawyers, legal workers and law students of conscience in anticipation of a major reaction to the (non or under) indictment of Ferguson police officer Darren Wilson for the death of Michael Brown. FLDC was formed by lawyers and legal workers who provide legal support to the greater Ferguson organizers, their supporters and their communities. Support includes legal representation in criminal and other cases, jail support and visits, legal research and legal observation and training.

We expect a strong reaction after the grand jury decision. We want to be ready and NEED YOUR HELP. We are looking for people to provide legal support on the ground in Ferguson/St. Louis and from remote locations in the following ways:

PLEASE NOTE: We are looking for politically-conscious lawyers, legal workers and law students who will respect the leadership of local activists/organizers and who are willing to think creatively and collectively about how the law can be used to support the Ferguson movement. We are also looking for lawyers who understand that the vigorous representation of activists includes respecting their client’s political choices and strategies. Finally, as the death of Mike Brown has exposed an enduring fault-line in our country around race, we call for legal advocates who have a deep commitment and solid track-record of implementing an anti-racist practice throughout their legal work. Legal advocates of color, women, and LGTBQ folks are especially encouraged to volunteer.

This is a pivotal and historic moment. Success (or failure) will have a dramatic effect on police abuse, racial profiling and mass incarceration across the country. We invite you to step up and help the people of Ferguson/St. Louis.

Are you the cable guy or the FBI?

By Elizabeth B. Carpenter

There is an interesting case before a U.S. Federal District Court in the Las Vegas area. The issue for the judge to decide is whether FBI agents can disconnect a utility service to an abode and then, disguise themselves as repairmen in order to gain entry and covertly search the premises in hopes of finding evidence that might justify the issuance of a search warrant.

The defendants in this case are a group of Chinese high rollers who are accused of running an illegal gambling operation from their Las Vegas villa at Caesar’s Palace Hotel and Casino. The government became suspicious of this group’s activities when they learned that some individuals in the group had been booted from Macau for illegal gambling activities. However, under the law, suspicion alone is not sufficient grounds for a search warrant.

The attorneys for the defendants in this case filed a motion to suppress asserting that the evidence in this case was obtained illegally when FBI agents disconnected the internet service to the villa, dressed up as internet service technicians, and entered the room claiming to be fixing the Internet connection. When inside the room, the agents snooped around and took photographs of items they believed to be incriminating. With this new found information, the agents believed that they had enough to get a search warrant. To make matters worse, when seeking the search warrant, the agents failed to disclose their sneaky tactics to the magistrate judge.

Can FBI agents legally do this sort “repairmen” ploy and get away with it?

The Fourth Amendment typically protects us under U.S. jurisdiction (even foreign nationals as in this case) from warrantless searches and seizures. However, when law enforcement is given consent to enter and search, a warrant is not required.

Here’s the problem: If law enforcement agents secretly cut off service to your house and pose as repairmen in order to get inside under false pretenses, are you really still consenting to a search? I’m of the opinion what you are only consenting to is a search for a cable connection. The attorneys for the accused gamblers say no, and they caution that saying yes would open a Pandora’s box for warrantless searches.

The next time your Internet or phone service goes out, it could actually be an elaborate plot by federal agents trying to gain access to your home. What do you think of this?

Of course, I will be following this case. No matter what the district judge decides, I am certain this issue will be appealed to a higher court.

Elizabeth B. Carpenter is a New Orleans attorney who focuses a significant portion of her practice on criminal defense in federal and state court.

The US Supreme Court will examine a question of privacy as it concerns hotel and motel guest records during this session. The high court agreed to review a federal appeals court ruling that struck down a Los Angeles ordinance requiring that hotel guest records “be made available to any officer of the Los Angeles Police Department for inspection.”

A divided Ninth U.S. Circuit Court of Appeals ruled this past December that the ordinance was unconstitutional under the Fourth Amendment, which guards against unreasonable searches and seizures. In my opinion, rightly so! The court concluded that hotels have an interest in keeping guest records private, even if the guests themselves have no such privacy rights because they willingly give their information to the hotel. Of course, the reason travelers give that information to the hotel is because they have been on the road all day and are not going to let a phone number or address get in the way of a hot shower and a good night’s sleep. After all when using a credit card to pay for our stay, like most of us do, we as customers expect this information to remain private. We don’t expect it to be readily shared. At least without a good reason and proper legal procedure, like a judge ordered Search Warrant.

The ordnance at issue was approved by the city in 2006. It requires hotels to collect and maintain guest information such as name and address, the number of people in the guest’s party, vehicle information, arrival and checkout dates, room number, and method of payment. Hotel operators who fail to comply with it face as many as 6 months behind bars and a $1,000 fine.

“A lot of the hotel owners in the L.A. area are being subject to warrantless searches under this ordinance,” explained the lawyer for L.A. motel owners, Naranjibhai and Ramilaben Patel. According to court documents the Patels had been cited by police for failing to keep the required records at one of their motels, the Rio Palace Motor Inn.

As the law in the state of Louisiana stands now, it is a violation of your right of privacy if the hotel discloses to another (including Police) which room you are staying in, and all other personal information related to your registering. However, a hotel may disclose whether or not you are a guest at the hotel unless you expressly instruct them not to do so.

When it comes to your actual room rental, I feel the same privacy protection should extend.

Generally, if you are using your hotel room in an ordinary way, then you have a limited right of privacy in the room. However, if the hotel believes that you are engaging in illegal acts, then hotel management has the right to enter and search your room without your permission. Under no circumstances can the hotel authorize the police to conduct a search of your room without your consent or without a PROPER SEARCH WARRANT.

Of course, I will be watching this case and will report the Supreme’s ruling.

Unjust Oppression of Sex Offenders on Halloween

By: Elizabeth Bagert Carpenter

Today is Halloween. This means that law enforcement officials are going to knock on the doors of many known sex offenders to remind them of laws that restrict their freedom today. For example, in Louisiana, registered sex offenders are not allowed to trick or treat, attend parties where children will be present or even decorate their home for Halloween. In other states, these restrictions include no driving after dark, no dressing up or leaving the house between 5 p.m. and 10:00 p.m. Other jurisdictions require registered sex offenders to turn their porch light off and post of sign “No candy or treats at this residence.”

I already know. Some of you are thinking, “So, they deserve this treatment – we must protect our children.” For many people, sex offenders are scarier than witches and vampires on Halloween. But there is no evidence that children are more likely to be abducted, assaulted, or abused on Halloween than on any other day. Crime data from the National Archive of Criminal Justice Data shows that there is no recorded increase in sex crimes before or after this holiday. Furthermore, many registered sex offenders are parents who are raising children — and no, they are not currently molesting their children. Most sex crimes are non-violent, isolated incidences, for which the person paid his debt to society and received counseling. Should they be restricted from participating in a family activity because of an error in judgement or mistake that they made years or decades ago? How do they explain to their child that he cannot put a pumpkin on the porch because Daddy will be put in jail? Am I the only person who thinks that it is insane that someone could be incarcerated in this country for placing a pumpkin on his front porch?

These laws are government mandated restrictions that suppress the freedom of hundreds of thousands of Americans. For the sake of preserving our constitution and the values upon which our country was formed, we should consider some of the realities of sex offender registry.

1) The crimes that can make a person a “sex offender” range from rape to sexting with a teen to, in some states, prostitution and public urination. The majority of sex offenses are non-violent crimes. Why are we not alerted when a murderer or armed robber has moved into our neighborhood?

2) Even for more serious crimes, the recidivism rates for sex offenders are extremely low—only about 5 percent commit another sex crime after being released from prison. The Department of Justice conducted a study and concluded that sex offender registry showed no demonstrable effect in reducing sexual re-offenses.

3) Since the start the registry, there has been a growing number of serious beatings, not only of sex offenders but sometimes of their family members or people with whom they live. Some confrontations have led to tragedies. Two sex offenders were murdered in Maine. In this case, the victims were no longer likely threats; one was simply a young man who at 17 had a 15-year-old girlfriend. Posting names, addresses and photographs on a sex offender registry is a risk to those on the list.

Within the next 2 weeks I am going to write a more in depth post about the facts and myths of sex offenders.

May a felon sell rather than give up his guns?

The Unites State Supreme Court has agreed to examine this issue during the present session in the case Henderson vs. United States.

This case centers on Tony Henderson, a former U.S. Border Patrol agent who was charged with selling marijuana in 2006, and later convicted of a felony.

Federal law prohibits felons from possessing firearms, and Henderson turned 15 personal weapons over to the FBI while his case was pending.

Two years later, he submitted a bill of sale to the FBI, indicating that he had sold the guns to another man and asked the FBI to transfer them accordingly. The government refused, reasoning that doing so would amount to granting “constructive possession” of the guns to Henderson.

The questions before the court are:

Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure* or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.

Henderson’s case was governed by precedent in the 11th U.S. Circuit Court of Appeals that says allowing a felon to transfer guns is tantamount to giving him constructive possession of the weapons in violation of the law. U.S. Courts of Appeals for the 3rd, 6th and 8th Circuits are in accord.

“Requiring a court to return firearms to a convicted felon would not only be in violation of a federal law, but would be contrary to the public policy behind the law,” that court argued.

But Henderson says the weapons had nothing to do with his crime.

Three other appeals courts reject that position, reasoning that the guns can be transferred because the felon has an interest in the firearms apart from a possessory interest.

By denying his sale of the guns, the government is trampling on his property rights, his lawyers argued in a petition seeking Supreme Court review of the case.

“It allows the government — based on a statutory prohibition on mere possession — to bypass formal forfeiture procedures and effectively strip gun owners of their entire ownership interest in significant, lawful household assets following a conviction for an unrelated offense,” petitioners say.

In this case, I agree with Henderson. If his criminal offense involved a weapon, then I would feel differently – I see no reason for the government to deprive him of his right to transfer his ownership in this property. Of course, I will be following this case — I am curious to see what the Supreme’s think.

*Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

The subject of prostitution has been analyzed and discussed for thousands of years. It was around 5000 years ago that civilized societies started to regulate prostitution. Those in power decided to use the mutual exchange of sex for money to forward their tax base, provide a regulated and needed service and accept the fact that love for sale was here to stay.

In fact, it was not long ago that prostitution was regulated in the city of New Orleans in an area of the city that was known as Storyville.

Storyville was the “red-light district” of New Orleans, Louisiana from 1897 to 1917. It was established by municipal ordinance under the New Orleans City Council by Alderman Sidney Story, a City Councilman, who wrote guidelines and legislation to control prostitution within the city. This municipal ordinance did not legalize prostitution, but rather created a 16 block area of the city wherein prostitution was not illegal. The area was originally referred to as The District, but its nickname Storyville soon caught on. It was bound by the streets of North Robertson, Iberville, Basin, and St. Louis and was found between the French Quarter and Claiborne Ave. Since it was also located by a train station, Storyville was a popular destination for visitors and travelers to the city and became a centralized attraction in the heart of New Orleans.

I say that we should return to the days of Storyville. The following 7 simple reasons why prostitution should be legalized, seem like a no-brainer to me.. It would result in a Win-Win for all parties involved; public and private.

1. It would make both parties less prone to STDs: Legalization could require that all prostitutes take regular health exams, helping to ensure that she or he is not carrying a sexually transmitted disease.

2. It would give the prostitute employment rights:Many prostitutes are at the financial mercy of a pimp, john or madam who often take more than half their income. Legalization would protect their rights and abolish this form of slavery.

3. It would open the door to unionization:Unions would probably be the best enforcer of the industry. They would help ensure that under the radar (illegal, non-taxpaying, non-health exam participants) would stay off the streets.

4. Illegal prostitution costs us money:While the costs involved are hard to estimate, it taxes the police force, the public defenders offices and the judicial system. All of these resources could be better utilized pursuing and prosecuting violent offenders.

5. Legalized prostitution would pay:We could tax prostitution in the same way we tax hospitality and luxury services, often higher than normal sales tax.

6. It can’t be prevented:There’s a reason it’s called “the world’s oldest profession”. It’s always been around, it always will be. We might as well bring it out into the open.

7. It Would Reduce Violence Against Women: Prostitutes in America (mostly women) are vulnerable to violence from customers and pimps alike. A study of San Francisco prostitutes found that 82% had been assaulted and 68% had been raped while working as prostitutes. Another study of prostitutes in Colorado Springs found they were 18 times more likely to be murdered than non-prostitutes their age and race.

Elizabeth B. Carpenter is a Criminal Defense Attorney in the New Orleans area. She represents many people who are accused of Prostitution related offenses.

The federal government announced that more than 65 prescription medications containing the most widely-prescribed painkiller, hydrocodone, will now be subject to new, stricter federal prescribing rules as of this past week.

The rules cover an array of prescription painkillers which combine hydrocodone with other analgesics such as, acetaminophen (Vicodin) or ibuprofen (Reprexain), as well as some prescription cough medications, all of which will be now be regulated as schedule II drugs.

The move was made in an effort to curb the abuse of these medications by limiting how they can be prescribed.

Hydrocodone has been listed as a schedule II drug since the enactment of the Controlled Substances Act in 1971, but many hydrocodone-containing medications remained in the less restrictive, schedule III category.

Among the changes in prescribing rules for hydrocodone-containing medications:

* A verbal prescription is allowed only in emergencies and a written prescription must follow within seven days or the pharmacist will notify the DEA

* Faxed, original prescriptions are permitted for home infusion/IV pain therapy, long-term-care facilities and hospices or terminally-ill patients.

* Prescriptions are limited to 30-day supplies, but prescribers may write up to three separate prescriptions, each for up to a one-month supply. Prescriptions will be void after 90 days.

State Health officials are encouraging doctors and other health professionals to use electronic prescribing for all schedule II medications.